Monday, March 16, 2009

There was an important Conference on the Legal and Publishing impact of the Google Books Settlement at Columbia Law School on Friday. Several attendees, led by Peter Brantley, were actively Twittering the event, see #gbslaw for the Twitter-stream. There are one, two very useful reflective summaries posted by Peter Hirtle (lawyer at Cornell Library).

Apparently one of the recurring themes in the conference was this mantra "What is good for Google is good for the USA." I am sure that it was said in jest/irony, but that must nevertheless have made the Google participants unhappy. Even if ironic, the comparison is wounding. Just now being compared to General Motors is nearly as bad as being compared to AIG, and is frankly worse than being compared to Microsoft (which would also be very unfair and unwelcome to Google, but the comparisons are coming...). The mantra is especially unfortunate, since it is far too close to the bone: the whole way the Google Book Search settlement is working out is far too US-centric, as though Detroit was the market, and the accessibility of digital books in the rest of the world was not a matter of importance to the US or to Google. General Motors has been building inefficient and slipshod cars which had limited appeal in the rest of the world and failed the ultimate tests of quality engineering and sustainability. Could Google fall into a similar trap of building too much, too wastefully, for local demand and national circumstance without full attention to all the factors which build quality, openness and sustainability? Apparently some anxieties on this score were raised at the meeting. Somewhere in the Twittering I saw someone questioning how the US would feel if another country adopted a similar approach a private enclosure and database representation of all the books in the English language held by French libraries (the French or even more probably the Chinese Union Database Library? It will probably happen). Can you imagine the uproar? Senator Conyers would have most unfavoured nation legislation in train within a twinkling...

A lot of the books from these dusty stacks in Michigan and California are foreign published. Through the group of libraries in the US with which it is collaborating Google will catch in its net of NotYet OutOfCopyright but OutOfPrint titles a vast swathe of books originally published by British, French and German publishers. Google has apparently spent $7 million in the last two month on press advertisements in over a hundred countries to advise authors and publishers of the rights that they may have in the Settlement to the use of their books in the US market ($7 million on print ads for the legal notice, few text database projects have had a total investment this large). But the authors of those books are also readers and if the eventual legal and technological effect of the Settlement is to make the access to those books much less viable in the countries in which they were written or published?

Spare a thought for Google: not only it is it being compared to General Motors, they now also have to deliver on the very substantial obligations which the Settlement imposes on them, in particular to roll out commercial services to libraries and to individuals (to reiterate: these obligations are only to deliver services to the US market). This is going to keep Google very busy. Many critics of the Settlement have pointed out that it creates an enormous (millions of books) private preserve for Google, from books which look more like they belong to the public domain, either because they are orphan, or because they close to orphan. This monopolistic position is seen as an obstacle to competition. Of course it is in one way a matter of enormous advantage for Google.

But there is another way of looking at the situation. Google is now under the obligation, the heavy public expectation of delivering services from this massive collection. I believe that it will be under a very heavy public expectation and moral obligation to deliver, or find some legal way to enable, similar services to overseas markets. Google has assumed an onerous obligation to curate and deliver services for a large class of legacy titles. Inevitably it has been taking short-cuts, there is a weird absence of metadata, it has missed some quality goals, the books are not always exciting, many of them are out of print for good reason, I suspect that the difficulty and the importance of this legacy task will in itself make it impractical for Google to be the innovator in the book space that it might like to become. It is much easier to deliver an innovative and truly revolutionary social service for book readers when you are not curating 10 million titles. Hirtle concludes his excellent notes with this:

Yet while there may be great disappointment with the process used to generate the settlement, I also detected no incipient revolution against the settlement itself. No one was calling for rights holders to register and submit comments to the court (as they can do until 5 May). No one was saying the court should reject it and tell the parties to start over. Yes, the class may be too large and the mechanism too crude, but we created this problem when we abandoned formalities, lengthened copyrights, and started treating every copyrighted item in the world like it was a Disney movie. Given this procrustean bed we have made for ourselves, the settlement may be our only way out. Yes, Congress should create a compulsory license authorizing the use of out-of-print books - but don't hold your breadth waiting for that. In the interim, the settlement may be the best we can hope for - even though it has the potential to radically alter all of our worlds. (Hirtle: Library Law Blog)

Google will proabably get its way, for the most part, with the Settlement, but it may also find the bed it has made for itself, with the aid of Publishers and the Author's Guild, somewhat procrustean. The tasks it faces are Herculean. It will surely get a lot of attention from lawyers (within and without the business). There will be worries about monoploy and anti-trust but there will be plenty of competition.